The Federalist No. 62

The Senate

Independent JournalWednesday, February 27, 1788 [James
Madison]

To the People of the State of New York:

HAVING
examined the constitution of the House of Representatives, and answered such of
the objections against it as seemed to merit notice, I enter next on the
examination of the Senate. The heads into which this member of the government
may be considered are: I. The qualification of senators; II. The appointment of
them by the State legislatures; III. The equality of representation in the
Senate; IV. The number of senators, and the term for which they are to be
elected; V. The powers vested in the Senate.

I. The qualifications proposed for senators, as
distinguished from those of representatives, consist in a more advanced age and
a longer period of citizenship. A senator must be thirty years of age at least;
as a representative must be twenty-five. And the former must have been a citizen
nine years; as seven years are required for the latter. The propriety of these
distinctions is explained by the nature of the senatorial trust, which,
requiring greater extent of information and stability of character, requires at
the same time that the senator should have reached a period of life most likely
to supply these advantages; and which, participating immediately in transactions
with foreign nations, ought to be exercised by none who are not thoroughly
weaned from the prepossessions and habits incident to foreign birth and
education. The term of nine years appears to be a prudent mediocrity between a
total exclusion of adopted citizens, whose merits and talents may claim a share
in the public confidence, and an indiscriminate and hasty admission of them,
which might create a channel for foreign influence on the national councils.

II. It is equally unnecessary to dilate on the appointment
of senators by the State legislatures. Among the various modes which might have
been devised for constituting this branch of the government, that which has been
proposed by the convention is probably the most congenial with the public
opinion. It is recommended by the double advantage of favoring a select
appointment, and of giving to the State governments such an agency in the
formation of the federal government as must secure the authority of the former,
and may form a convenient link between the two systems.

III. The equality of representation in the Senate is
another point, which, being evidently the result of compromise between the
opposite pretensions of the large and the small States, does not call for much
discussion. If indeed it be right, that among a people thoroughly incorporated
into one nation, every district ought to have a
proportional share in the government, and that among independent and
sovereign States, bound together by a simple league, the parties, however
unequal in size, ought to have an equal share in the common councils, it
does not appear to be without some reason that in a compound republic, partaking
both of the national and federal character, the government ought to be founded
on a mixture of the principles of proportional and equal representation. But it
is superfluous to try, by the standard of theory, a part of the Constitution
which is allowed on all hands to be the result, not of theory, but "of a
spirit of amity, and that mutual deference and concession which the peculiarity
of our political situation rendered indispensable." A common government,
with powers equal to its objects, is called for by the voice, and still more
loudly by the political situation, of America. A government founded on
principles more consonant to the wishes of the larger States, is not likely to
be obtained from the smaller States. The only option, then, for the former, lies
between the proposed government and a government still more objectionable. Under
this alternative, the advice of prudence must be to embrace the lesser evil;
and, instead of indulging a fruitless anticipation of the possible mischiefs
which may ensue, to contemplate rather the advantageous consequences which may
qualify the sacrifice.

In this spirit it may be remarked, that the equal vote
allowed to each State is at once a constitutional recognition of the portion of
sovereignty remaining in the individual States, and an instrument for preserving
that residuary sovereignty. So far the equality ought to be no less acceptable
to the large than to the small States; since they are not less solicitous to
guard, by every possible expedient, against an improper consolidation of the
States into one simple republic.

Another advantage accruing from this ingredient in the
constitution of the Senate is, the additional impediment it must prove against
improper acts of legislation. No law or resolution can now be passed without the
concurrence, first, of a majority of the people, and then, of a majority of the
States. It must be acknowledged that this complicated check on legislation may
in some instances be injurious as well as beneficial; and that the peculiar
defense which it involves in favor of the smaller States, would be more
rational, if any interests common to them, and distinct from those of the other
States, would otherwise be exposed to peculiar danger. But as the larger States
will always be able, by their power over the supplies, to defeat unreasonable
exertions of this prerogative of the lesser States, and as the facility and
excess of law-making seem to be the diseases to which our governments are most
liable, it is not impossible that this part of the Constitution may be more
convenient in practice than it appears to many in contemplation.

IV. The number of senators, and the duration of their
appointment, come next to be considered. In order to form an accurate judgment
on both of these points, it will be proper to inquire into the purposes which
are to be answered by a senate; and in order to ascertain these, it will be
necessary to review the inconveniences which a republic must suffer from the
want of such an institution.

First. It is a misfortune incident to republican
government, though in a less degree than to other governments, that those who
administer it may forget their obligations to their constituents, and prove
unfaithful to their important trust. In this point of view, a senate, as a
second branch of the legislative assembly, distinct from, and dividing the power
with, a first, must be in all cases a salutary check on the government. It
doubles the security to the people, by requiring the concurrence of two distinct
bodies in schemes of usurpation or perfidy, where the ambition or corruption of
one would otherwise be sufficient. This is a precaution founded on such clear
principles, and now so well understood in the United States, that it would be
more than superfluous to enlarge on it. I will barely remark, that as the
improbability of sinister combinations will be in proportion to the
dissimilarity in the genius of the two bodies, it must be politic to distinguish
them from each other by every circumstance which will consist with a due harmony
in all proper measures, and with the genuine principles of republican
government.

Second. The necessity of a senate is not less
indicated by the propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be seduced by factious
leaders into intemperate and pernicious resolutions. Examples on this subject
might be cited without number; and from proceedings within the United States, as
well as from the history of other nations. But a position that will not be
contradicted, need not be proved. All that need be remarked is, that a body
which is to correct this infirmity ought itself to be free from it, and
consequently ought to be less numerous. It ought, moreover, to possess great
firmness, and consequently ought to hold its authority by a tenure of
considerable duration.

Third. Another defect to be supplied by a senate
lies in a want of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men called for the most part
from pursuits of a private nature, continued in appointment for a short time,
and led by no permanent motive to devote the intervals of public occupation to a
study of the laws, the affairs, and the comprehensive interests of their
country, should, if left wholly to themselves, escape a variety of important
errors in the exercise of their legislative trust. It may be affirmed, on the
best grounds, that no small share of the present embarrassments of America is to
be charged on the blunders of our governments; and that these have proceeded
from the heads rather than the hearts of most of the authors of them. What
indeed are all the repealing, explaining, and amending laws, which fill and
disgrace our voluminous codes, but so many monuments of deficient wisdom; so
many impeachments exhibited by each succeeding against each preceding session;
so many admonitions to the people, of the value of those aids which may be
expected from a well-constituted senate?

A good government implies two things: first, fidelity to
the object of government, which is the happiness of the people; secondly, a
knowledge of the means by which that object can be best attained. Some
governments are deficient in both these qualities; most governments are
deficient in the first. I scruple not to assert, that in American governments
too little attention has been paid to the last. The federal Constitution avoids
this error; and what merits particular notice, it provides for the last in a
mode which increases the security for the first.

Fourth. The mutability in the public councils
arising from a rapid succession of new members, however qualified they may be,
points out, in the strongest manner, the necessity of some stable institution in
the government. Every new election in the States is found to change one half of
the representatives. From this change of men must proceed a change of opinions;
and from a change of opinions, a change of measures. But a continual change even
of good measures is inconsistent with every rule of prudence and every prospect
of success. The remark is verified in private life, and becomes more just, as
well as more important, in national transactions.

To trace the mischievous effects of a mutable government
would fill a volume. I will hint a few only, each of which will be perceived to
be a source of innumerable others.

In the first place, it forfeits the respect and
confidence of other nations, and all the advantages connected with national
character. An individual who is observed to be inconstant to his plans, or
perhaps to carry on his affairs without any plan at all, is marked at once, by
all prudent people, as a speedy victim to his own unsteadiness and folly. His
more friendly neighbors may pity him, but all will decline to connect their
fortunes with his; and not a few will seize the opportunity of making their
fortunes out of his. One nation is to another what one individual is to another;
with this melancholy distinction perhaps, that the former, with fewer of the
benevolent emotions than the latter, are under fewer restraints also from taking
undue advantage from the indiscretions of each other. Every nation,
consequently, whose affairs betray a want of wisdom and stability, may calculate
on every loss which can be sustained from the more systematic policy of their
wiser neighbors. But the best instruction on this subject is unhappily conveyed
to America by the example of her own situation. She finds that she is held in no
respect by her friends; that she is the derision of her enemies; and that she is
a prey to every nation which has an interest in speculating on her fluctuating
councils and embarrassed affairs.

The internal effects of a mutable policy are still more
calamitous. It poisons the blessing of liberty itself. It will be of little
avail to the people, that the laws are made by men of their own choice, if the
laws be so voluminous that they cannot be read, or so incoherent that they
cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man, who knows what the
law is to-day, can guess what it will be to-morrow. Law is defined to be a rule
of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable
advantage it gives to the sagacious, the enterprising, and the moneyed few over
the industrious and uniformed mass of the people. Every new regulation
concerning commerce or revenue, or in any way affecting the value of the
different species of property, presents a new harvest to those who watch the
change, and can trace its consequences; a harvest, reared not by themselves, but
by the toils and cares of the great body of their fellow-citizens. This is a
state of things in which it may be said with some truth that laws are made for
the few, not for the
many.

In another point of view, great injury results from an
unstable government. The want of confidence in the public councils damps every
useful undertaking, the success and profit of which may depend on a continuance
of existing arrangements. What prudent merchant will hazard his fortunes in any
new branch of commerce when he knows not but that his plans may be rendered
unlawful before they can be executed? What farmer or manufacturer will lay
himself out for the encouragement given to any particular cultivation or
establishment, when he can have no assurance that his preparatory labors and
advances will not render him a victim to an inconstant government? In a word, no
great improvement or laudable enterprise can go forward which requires the
auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution
of attachment and reverence which steals into the hearts of the people, towards
a political system which betrays so many marks of infirmity, and disappoints so
many of their flattering hopes. No government, any more than an individual, will
long be respected without being truly respectable; nor be truly respectable,
without possessing a certain portion of order and stability.

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